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Exhibit 10.28
AMENDMENT #2 TO THE APRIL 13, 1998 AND THE OCTOBER 4, 1996
INTELLECTUAL PROPERTY LICENSE AGREEMENTS
WHEREAS Immersion Corporation, a Delaware Corporation with principal
offices in San Jose, California (hereinafter "Immersion") and Logitech, Inc., a
California corporation with principal offices in Fremont, California
(hereinafter "Logitech"), entered into Intellectual Property License Agreements
dated October 4, 1996 (the "October 4 IP License Agreement") and April 13, 1998
(the "April 13 IP License Agreement); and
WHEREAS Immersion and Logitech (collectively, the "Parties") now wish to
amend the October 4 IP License Agreement and the April 13 IP License Agreement
in certain respects described below;
NOW, THEREFORE, the Parties hereby agree to amend the October 4 and April
13 IP License Agreements as follows:
1. Section 6.5.3 of the October 4 IP License Agreement and ss. 6.5.3 of
the April 13 IP License Agreement, each of which is entitled
"Exceptions With Respect to Patents Issued After the Effective Date,"
is hereby deleted. All other references in the October 4 IP License
Agreement and in the April 13 IP License Agreement to ss. 6.5.3 are
also deleted.
2. Section 1.17 of the October 4 IP License Agreement is hereby deleted,
and the following provision is substituted in its place:
"LICENSED PATENTS. This means all patents owned by or assigned to
Immersion Corporation during the term of this Agreement containing one
or more claims which cover a Joystick Product or a Wheel Product."
3. Section 7.3 of the October 4 IP License Agreement and ss. 7.3 of the
April 13 IP License Agreement, each of which is entitled "Limitations
of Liability With Respect to Indemnity Obligations," is hereby
deleted, and the following provision substituted in its place:
"LIMITATIONS OF LIABILITY WITH RESPECT TO INDEMNITY OBLIGATIONS. IN NO
CASE WILL EITHER PARTY'S TOTAL CUMULATIVE LIABILITY WITH RESPECT TO
ITS OBLIGATIONS OF INDEMNITY, INCLUDING BUT NOT LIMITED TO COSTS OF
DEFENSE AND "COSTS" (AS DEFINED ABOVE), EXCEED THE SUM OF FIVE HUNDRED
THOUSAND DOLLARS ($500,000) PER LAWSUIT." FOR PURPOSES OF THIS
PROVISION, "LAWSUIT" MEANS A LEGAL ACTION (INCLUDING ALL CLAIMS,
COUNTERCLAIMS AND CROSS-CLAIMS FILED THEREIN AND ALL AMENDMENTS
THERETO) FALLING WITHIN THE SCOPE OF A PARTY'S INDEMNIFICATION
OBLIGATIONS HEREUNDER AND FILED IN A UNITED STATES
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DISTRICT COURT, IN A STATE TRIAL COURT, OR IN THE INTERNATIONAL TRADE
COMMISSION.
4. New ss. 6.5.1.2 is hereby added to the October 4 IP License Agreement
and the April 13 IP License Agreement, as follows:
"OPINION FEES. In situations in which a third-party asserts an
allegation of patent infringement against Logitech which arguably
falls within the scope of Immersion's indemnification obligations to
Logitech, Immersion will retain competent counsel of its own choice to
perform and prepare a written infringement and/or validity analysis.
Immersion will bear the cost of such analysis, subject to Logitech's
obligation to cooperate fully with such counsel in providing such
facts and materials as counsel may reasonably require in order to
prepare a competent opinion. Immersion's decision to retain counsel
pursuant to this provision shall not under any circumstances be
asserted by Logitech, or be admissible in any court, as evidence that
Immersion is in fact obligated to indemnify Logitech against any such
third-party assertion.
5. This Amendment, together with the other written agreements previously
entered into and executed by the Parties, constitutes the complete
agreement of the Parties concerning the subject matter hereof, and
supersedes any other agreements, promises, representations or
discussions, written or oral, concerning such subject matter.
IN WITNESS WHEREOF, the authorized representatives of the Parties hereto
have signed this Amendment #2 as of the date and year set forth below.
IMMERSION CORPORATION LOGITECH, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxx
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Date: 7/24/00 Date: 7/27/00
